By V. John Ella, Esq.
Kevin and Pat Williams, two Vikings defensive linemen who helped their team clinch the NFL North title and reach the second round of the playoffs, also won another appellate challenge in the federal portion of their drug testing case. On December 14, 2009, the Eighth Circuit Court of Appeals declined a request by the National Football League (“NFL”) for a rehearing by the same three-judge panel, as well as a parallel request for a rehearing en banc by all the judges of the Eighth Circuit. Statistically, the granting of a request for a rehearing by a federal appeals court is quite rare, so the result is not surprising.
The only appellate play left for the NFL at this point is a Hail Mary to the United States Supreme Court. Although a grant of certiorari by the high court is also against the odds, the fact that four of the eleven judges in the Eighth Circuit dissented from the order, meaning they supported a rehearing, may give the NFL some hope.
The original lawsuit involved a challenge to the suspension of the two players in 2008 for testing positive for bumetanide, a diuretic banned by the NFL’s drug testing policy. The players admitted to taking a weight loss supplement called “StarCaps,” which may have included the banned substance. Part of their argument was that the NFL violated Minnesota state laws on drug testing and lawful consumable products. The NFL argued that the state statutes were preempted by section 301 of the federal Labor Management Relations Act (“LMRA”). In a surprising ruling, the federal district court held that the state claims were not preempted and, on appeal, the Eighth Circuit agreed. In the most recent ruling, Chief Judge Loken, in a dissent, questioned whether the NFL was properly considered the “employer” in this context and pointed to several questions of federal law that he felt justified federal jurisdiction. The other three dissenting judges, writing separately, disagreed squarely with the original decision to deny jurisdiction as contrary to Eighth Circuit precedent but were out-voted by the majority. This denial of the NFL’s request for a rehearing means the league’s options for ensuring a nationwide drug testing program are narrowing.
Meanwhile, the league also continues to defend against the Williamses in Minnesota state court. On January 14, 2010, lawyers both sides faced off in Hennepin County Court before Judge Gary Larson to argue pre-trial motions. Lawyers for the NFL argued that the players should not be able to hide behind state law and, picking up on 8th Circuit Judge Loken’s comment, argued for the first time that the NFL was not their “employer” for purposes of Minnesota drug testing. Judge Larson said he could rule on the motions within a month but it would likely be after the Super Bowl on February 7th. Trial is scheduled for March 10th.
Ella is an attorney in the Sports Compliance Practice Group at Jackson Lewis LLP. He can be reached at Ellaj@jacksonlewis.com
